Social Media Platforms Urge Supreme Court to Accept Cert. Petition in Anti-Terrorism Act Appeal

A pair of briefs submitted Tuesday, one by Meta Platforms and Google, and one by Twitter pushed for the Supreme Court to overturn a Ninth Circuit ruling in a case brought under the Anti-Terrorism Act (ATA), which authorizes a United States national injured by an act of international terrorism to recover treble damages from the perpetrator or those who aided and abetted in the act.

The social media platforms argued that the Ninth Circuit’s June 2021 decision impermissibly expanded the scope of ATA liability in the case brought by family members of a victim of the 2017 Reina nightclub shooting in Istanbul, Turkey. According to Meta and Google’s brief, the plaintiffs do not plausibly claim that any of the defendants “knowingly aided that horrific act of terrorism,” nor that the perpetrators of the attacks used their online services to aid in their commission.

Instead, the plaintiffs alleged that the companies “aided and abetted” the Reina attack by failing to adequately enforce their policies prohibiting terrorism-related posts when it came to removing content that was generally helpful to the Islamic State group, who carried out the attack. 

The district court sided with the social media platforms, finding the allegations insufficient to sustain a claim that any defendant knowingly provided substantial assistance in the Reina attack. However, the Ninth Circuit partly reversed, and in so doing, revived the plaintiffs’ aiding-and-abetting claim. 

Specifically, the panel endorsed allegations that “the companies assisted [IS] generally by failing to do more to keep [IS] supporters from exploiting the companies’ services.” The court also held that despite the fact that the perpetrators’ use of the social media platforms’ services violated their terms and conditions, the companies should have taken more aggressive prevention efforts.

In this week’s briefs, the social media platforms claimed that the appellate court only reached those conclusions by “embracing a reading of the statute that defies text, context, common-law principles, and common sense.” According to Meta and Google’s brief, the Supreme Court should clarify that as Congress intended, the scope of the law is much narrower and that the Ninth Circuit’s view of it creates liability for any provider of widely available services such as a bank or a rental car agency.

“None of that is remotely consistent with Congress’s expressly stated intent to provide a damages remedy consistent with well-established and suitably restrained principles of aiding-and-abetting liability,” the defendants argued in asking for the court to “restore ATA liability to the limits imposed by the statutory text and traditional principles of secondary liability.”

Google is represented by Williams & Connolly LLP and Wilson Sonsini Goodrich & Rosati PC Meta Platforms by Clement & Murphy PLLC, Gibson, Dunn & Crutcher LLP, and its own counsel.

Twitter is represented by Wilmer Cutler Pickering Hale and Dorr LLP.